Publications

This is a searchable catalogue of the College's most recent books, book chapters, journal articles and working papers. The ANU College of Law also publishes a Research Paper Series on SSRN.

‘Working Collaboratively, Holistically and Strategically in and with Community – The Power of Community Development in Legal Education’ (Presentation Slides)

Author(s): Elizabeth Curran

“You never really understand a person until you consider things from his point of view…Until you climb inside of his skin and walk around in it” Atticus Finch, To Kill a Mockingbird, Harper Lee.

I have been asked to answer the following questions today: 1. What is Community Development 2. What it means in terms of approach 3. To provide examples of when I have used it in my work 4. To distill any examples of how it is done 5. To discuss how to evaluate its impact and worth and 6. To examine why it might be a core service of CLCs. 7. Dome key challenges in terms of funding and funders.

Now in Australia we have the empirical data that had been lacking to support anecdotally what had been observed by some service providers over many years. These empirical studies not only demonstrated that similar issues arise in Australia for people who are the recipients of legal assistance services (largely people on social support or with incomes of under $26,000K) but that inroads could be made by joined- up services both legal and non-legal, holistic approaches, community legal education that reaches out and is targeted and responsive to community needs and behaviour. The studies confirmed that the direction of many legal assistance services to work collaboratively, holistically and strategically to assist people, to educate them and to work towards law reform to ensure that recurring problems are all critical if access to the legal system and equality before the law are to be attained.

CLCs have a vital role as community agencies along with others to enable community members to have and find a voice.

“If funders and the community want the legal assistance sector to make a difference in solving people’s problems and advancing and protecting community rights then they must recognize the need to approach problems strategically and use various approaches to obtain results. To achieve this, organizations must be given a level of autonomy that frees them up to use their skills, experience and knowledge of the system as well as the client's actual circumstances to decide the best strategy.”

Read on SSRN

Centre:

Research theme: Human Rights Law and Policy, Indigenous Peoples and the Law, Law and Social Justice, Legal Education

Building Capacity to Cope with Ethical Dilemmas in Legal Practice Through Teaching ‘Giving Voice to Values’ Techniques (Presentation Slides)

Author(s): Elizabeth Curran

This panel presentation will be a basic introduction for a more detailed session on Saturday with Viv Holmes, Anneka Ferguson (in absencia) which will discuss the theory, practice, research and student responses that informs our courses.

In the context of Recommendations 6 and 7 Critical issues and challenges are presented. How can teachers challenge students to explore ethical dilemmas emerging in all area of practice be they commercial, property, consumer and civil law? How can we as teachers not just teach students to identify ethical issues but also assist them in building the tools necessary to actively and appropriately deal with such dilemmas?

In the ANU Legal Workshop (delivered in a blended mode with face to face and on-line teaching) the professional legal training course for graduates to become admitted to legal practice, we use Mary Gentile’s ‘Giving Voice to Values’ (GVV) approach. This will be briefly explained.

I have taught ethics in an undergraduate context and am now teaching at graduate levels and see more opportunities using the GVV approach. In Legal Workshop’s Ethics subject and in a subject, ‘Professional Development’ (PM) that supports key practice areas, we use GVV to engage students at a deeper level so they learn about themselves and their working environment. The key GVV approach is to equip students with not only the ability to identify an ethical problems but also strategies to enable them to act on their ethical duties.

Our aim is to build the students’ resilience, build their capacity to act ethically and speak up appropriately and wisely.

During my section of the panel presentation, I will ask the audience to participate by doing the first exercise students undertake- a Professional Development Journal Entry. This activity is based on GVV’s ‘Tale of Two Stories’ and requires students to recall and then reflect on a time in their lives when they have, and have not, ‘spoken’ their values. The activity is a useful lead-in to tackling ethical issues in legal workplace scenarios as the course progresses (tomorrow’s session). This activity starts the reflective practice conversation and flags issues that emerging lawyers face in responding ethically. In student debriefs some of our students (many of whom work in legal practice as para-legals, judges associates, waitressing, marketing and fact food outlets etc.) indicate they already often encounter unethical practice and that examining the reasons why they speak or do not speak out is useful for the later exercises. The discussion also has scope for teachers to share their experiences, values and ethical dilemmas and how they did or not deal with them. In the follow-up session on Saturday we will explore how the GVV approach enables students to develop and practise skill for acting ethically. It is suggested a similar activity could be used in undergraduate level to start reflective practice and the values and ethics discussion with students earlier.

Read on SSRN

Centre: CLAH

Research theme: Human Rights Law and Policy, Indigenous Peoples and the Law, Law and Social Justice, Legal Education

'CLCs Having an Impact on Lives - Strategic Approaches to Problem Solving’ (Presentation Slides)

Author(s): Elizabeth Curran

Theme - Advancing (by discovering and creating, developing innovative ideas and strategies, including and incorporating the learning and perspectives of others):

Strategic thinking can and has enabled the benefits of early intervention and prevention of legal problems and their escalation. This goes beyond one-to-one case work and can address problem at their core. This paper will explore easy, useable, relevant and replicable results of research evaluations undertaken by Curran of what is effective legal service action that has prevented the public from having to go through the same problem and thus enhancing service impact. Reflective practice is a key way to inform strategic action and continuous learning and how this can be done will also be explored.

This paper examines case studies from CLCs, good practice, responsiveness, strategic thinking and processes that foster having significant impact. It will share how to, up to date action research, facilitate sharing of experiences through the session’s interactive approach.

The session will take an adult learning approach to delivery meaning it will involve centres in discussion about their experiences rather than being in a traditional or lecture mode of delivery. People in the room have expertise and skills that can be shared by all in participants in the session.

Read on SSRN

Centre:

Research theme: Human Rights Law and Policy, Indigenous Peoples and the Law, Law and Social Justice, Legal Education

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Introductory Note: 2014 Protocol to the Forced Labour Convention, 1930

Author(s): Donald Anton

Two major ILO Conventions prohibit forced or compulsory labor in all its forms – Conventions 29 and 105. Convention 29 was adopted in 1930. Forced labor at the time was mostly seen as related to the dictates of colonial administrations, along with a few states. Despite this perceived limited context, the ILO adopted an open-ended definition of prohibited forced labor without listing specific prohibitions. The definition continues to apply to every possible form of forced labor and to all workers no matter whether in the public or private sector. Convention 105 was adopted in 1957. It advances Convention 29 by requiring the immediate abolition of forced labor in five specific cases related to forced labor by the State for economic purposes or as a means of political coercion.

Yet, for some time, it has been felt that gaps existed and additional measures were needed to strengthen international cooperation to combat modern forms of forced labor. In 2013, an ILO tripartite meeting of experts concluded that “[d]espite the broad reach of Convention No. 29…significant implementation gaps remain in the effective eradication of forced labour and need to be urgently addressed in terms of prevention, victim protection, compensation, enforcement, policy coherence and international cooperation…” The experts also concluded “that there was added value in the adoption of supplementary measure to address the significant implementation gaps remaining in order to effectively eradicate forced labour in all its forms.” Acting on these conclusions, the 103rd Session of the International Labour Conference (ILC) voted on its third major instrument designed to strengthen international efforts to end all forms of forced labor. With 437 votes for, 8 against, and 27 abstentions, the General Conference of the ILO adopted the Protocol of 2014 to the Forced Labour Convention, 1930.

Read on SSRN

Centre: CLAH

Research theme: Human Rights Law and Policy

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Rethinking Treatment for Children with Gender Dysphoria and the Family Court's Welfare Jurisdiction

Author(s): Haydn Marsh

The authorisation of treatment for children with gender dysphoria has been found, inappropriately, to fall within the Family Court of Australia’s welfare jurisdiction. For a particular medical treatment to attract the Court’s supervisory jurisdiction it must be found that the child is not competent to consent to the treatment themself and the treatment must fall within the ambit of what the Court has called a ‘special medical procedure’. The intent behind the exercise of the Court’s welfare jurisdiction is to safeguard the best interests of children.

Contrary to previous decisions of the Court, treatment for gender dysphoria does not fall within the factors identified by the majority of the High Court in Marion’s Case as being indicative of a ‘special medical procedure’. The practical effects of this mistaken characterisation are, paradoxically, detrimental to children with gender dysphoria. In addition, the ability of mature children to authorise partially irreversible treatment for themselves has been unnecessarily complicated, and measures should be taken to clarify and standardise the law in this area.

Read on SSRN

Centre: CLAH

Research theme: Human Rights Law and Policy

The Mirage of Merit

The Mirage of Merit: Reconstituting the 'Ideal Academic'

Author(s): Margaret Thornton

This paper takes a hard look at merit and the ideal academic, twin concepts that have been accorded short shrift by the scholarly literature. For the most authoritative positions, the ideal displays all the hallmarks of Benchmark Man. Despite the ostensible 'feminisation' of the academy, the liberal myth that merit is stable, objective and calculable lingers on. As a counterpoint to the feminisation thesis, it is argued that a remasculinisation of the academy is occurring as a result of the transformation of higher education wrought by the new knowledge economy. In response, the ideal academic has become a 'technopreneur' – a scientific researcher with business acumen who produces academic capitalism. This new ideal academic evinces a distinctly masculinist hue in contrast to the less-than-ideal academic – the humanities or social science teacher with large classes, who is more likely to be both casualised and feminised.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education

Adventures in the Grey Zone

Adventures in the Grey Zone: Constitutionalism, Rights and the Review of Executive Power in the Migration Context

Author(s): Matthew Zagor

The physical and legal isolation of the irregularly arriving non-citizen in Australia is a product of various legal strategies, from legislation mandating detention to the experimental 'excision' of parts of the country from the operation of statute and the scrutiny of the courts. Australia's innovative use of legislation to carve out spaces within which an unencumbered sovereign executive power can expand has unsurprisingly seen commentators turn to cosmological metaphors. This chapter builds upon David Dyzhenhaus' nuanced description of these spaces as 'grey holes' where the impression of legality is created by legislative and judicial endorsement of strategies which exclude meaningful judicial review of executive conduct. By reference to five recent cases in which these strategies were challenged, it explores the curious attempt to use the law in order to suspend the law, the changeable role of the judiciary in both consolidating and piercing these legislatively carved exclusionary zones, and the muscular anti-dialogic reassertion of legislative dominance that invariably accompanies perceived judicial interference. The chapter's principal aim is to use these case studies to map out the current state of both constitutional doctrine and institutional relations with respect to the rights of non-citizens in the exercise of executive power in Australia. It contrasts the notorious rights reluctance of the Australian political system and its culture of deference and trust in the executive with the impressive architecture of administrative justice developed over the past three decades, and considers the tension that surrounds contemporary appeals to 'sovereignty' as source of power, as well as the contentious role played by traditional legalism as both a shield and a sword in the court's juridical arsenal for scrutinizing rights-precluding executive conduct.

Read on SSRN

Centre: CIPL, CLAH, LRSJ

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, International Law, Law and Religion, Law and Social Justice, Legal Theory, Migration and Movement of Peoples

Law and Democracy

Law and Democracy: Contemporary Questions

Editor(s): Kim Rubenstein, Glenn Patmore

Law and Democracy: Contemporary Questions provides a fresh understanding of law’s regulation of Australian democracy. The book enriches public law scholarship, deepening and challenging the current conceptions of law’s regulation of popular participation and legal representation. The book raises and addresses a number of contemporary questions about legal institutions, principles and practices. Examining the regulation of democracy, this book scrutinises the assumptions and scope of constitutional democracy and enhances our understanding of the frontiers of accountability and responsible government. In addition, key issues of law, culture and democracy are revealed in their socio-legal context.The book brings together emerging and established scholars and practitioners with expertise in public law. It will be of interest to those studying law, politics, cultural studies and contemporary history.

Order your copy online

Centre: CIPL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law and Social Justice, Migration and Movement of Peoples

Criminal Fair Trial Rights: Article 6 of the European Convention

Criminal Fair Trial Rights: Article 6 of the European Convention on Human Rights

Author(s): Ryan Goss

Article 6 fair trial rights under the European Convention on Human Rights are the most heavily-litigated Convention rights before the Strasbourg Court, generating a large and complex body of case law. This book provides an innovative and critical analysis of Strasbourg's Article 6 case law. The category of 'fair trial rights' includes many component rights. The existing literature tends to chart the law with respect to each of these component rights, one by one. This traditional approach is useful, but it risks artificially isolating the case law in a series of watertight compartments. The book takes a complementary (but different) approach. Instead of analyzing the component rights one by one, it takes a critical look at the case law through a number of 'cross-cutting' problems and themes common to many of the component rights. It will be useful to all those working in the fields of criminal law and human rights.

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Centre: CIPL

Research theme: Human Rights Law and Policy, International Law

Australian anti-discrimination law 2nd edition

Australian anti-discrimination law 2nd Edition

Author(s): , Neil Rees, Dominique Allen

The second edition of this book, which is the first major text in the field directed to both legal practitioners and law students, contains a detailed analysis of Australian anti-discrimination law as well as extracts from all of the major cases and the writings of leading commentators. It incorporates the many changes to the law since the first edition was published in 2008 and includes new chapters dealing with positive duties, victimisation and protections against discrimination in industrial relations laws. The book includes a comprehensive examination of the difficult concepts of direct and indirect discrimination as well as coverage of the major grounds of unlawful discrimination, such as race, sex and disability. The book records the history of the major pieces of anti-discrimination legislation, examines important international developments and includes numerous suggestions for reform.

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Centre: CIPL

Research theme: Human Rights Law and Policy, Indigenous Peoples and the Law, Law and Gender, Law and Social Justice

Empowering and Capacity Building Health Professionals for Better Human Rights Outcomes (Presentation Slides)

Author(s): Elizabeth Curran

In her panel paper Dr Curran of AN discusses how health professionals can utilise the Victorian Charter of Human Rights and Responsibilities:

1) To understand human rights and how they are protected in the Charter.

2) Identify relevant human rights in real life scenarios.

3) Understand how the Charter can be used as an advocacy tool for the empowerment of patients and the achievement of social justice.

4) To develop ideas for negotiating better outcomes in local communities.

She gives examples of the use of the Charter by medical health professionals to gain better human rights outcomes for their patients from public authorities. One example was of a maternal and child health nurse who used the Charter when a hospital refused to provide urgent medical treatment to an asylum seeker because she could not pay. The feedback from the maternal and child care nurse was that the Charter ‘works’.

Symposium Goals:

This forum explores the strengths and limitations of human rights and respectful care frameworks in advancing maternity reform in Australia. It seeks to bring together the policy, legal and women’s health communities along with professional providers and birth consumer groups to discuss strategies for improving the quality of care for birthing women and those supporting them.

This dialogue was to build on several recent initiatives, including:

• the European Human Rights conference held in The Hague in June 2012,

• the Childbirth and the Law conference in Sydney in October 2012,

• the international White Ribbon Alliance initiative, Respectful Maternity Care.

Read on SSRN

Centre: CLAH

Research theme: Human Rights Law and Policy, Indigenous Peoples and the Law, Law and Social Justice, Legal Education

Global Artificial Photosynthesis: Challenges for Bioethics and the Human Right to Enjoy the Benefit of Scientific Progress

Author(s):

So what is artificial photosynthesis and why is it important? Most of us knew that photosynthesis is the process whereby plants and certain bacteria have used sunlight as a source of energy to split water to create energy fro the production of food (starches) with the addition of atmospheric carbon dioxide, while producing atmospheric oxygen. Our policy makers seem to think that only plants will ever 'do' photosynthesis. This is a bit like the men at the end of the 19th century who were convinced that only birds could ‘do’ controlled flight. If they were alive today their solution for long distance air travel might be to genetically engineer huge homing pigeons, capable of carrying passengers on their back.

Artificial photosynthesis began in the Cold War. It really was part of what was known in the 'Dr Stangelove' film as the 'mine-shaft' gap, part of the plan to enhance the capacity of the United States to keep its politicians, senior industrial and military people alive during a nuclear winter. Although artificial photosynthesis on some definitions includes synthetic biology (for example the genetic engineering of bacetria to produce lipid-based fuels) its core research involves nanoscale engineering. The nanoscale involves manipulating matter at the level of about a billionth of a metre, it involves making objects atom by atom. Some examples of how nanotechnology is already improving the light capture, electron transport and water splitting and energy storage aspects of artificial photosynthesis will be presented later.

Perhaps the most significant aspect of artificial photosynthesis is the prospect that nanotechnology may allow the global domestic production of cheap, 'off-grid' solar fuels and food. With timely and coordinated government, academic, corporate encouragement, artificial photosynthesis may become a global phenomenon, deriving inexpensive, local (household and community) generation of fuels and basic foods from simple raw materials – sunlight, water and carbon dioxide – just like plants do, only better.

One way governance principles (such as those derived from international human rights) can assist this process is by assisting to create the normative architecture for a Global Artificial Photosynthesis project (GAP) (or Global Solar Fuels and Foods (GSF)) project. Such a macroscience GAP or GSF project can be regarded as the moral culmination of nanotechnology. It could advance existing foundational virtues of international human rights such as justice equity and respect for human dignity, as well as emerging virtues such as environmental sustainability. In other words, this is one area where we need to have law and science rapidly and efficiently working side by side if it's going to work in time to make a difference and assist humanity to move from what (as we will see) is now no longer being called the Holocene, but the Anthropocene, towards the Sustainocene epoch.

One hitherto largely unexplored area of international human rights that could be significant in this context concerns the right to enjoy the benefits of scientific progress and its applications.

Read on SSRN

Centre: CLAH

Research theme: Human Rights Law and Policy

Environmental Protection and Human Rights

Environmental Protection and Human Rights

Author(s): Donald Anton

This book concentrates on the relationship between human rights and the environment. The first chapter provides the framework for the book’s analysis and begins by defining “environment” and noting recent changes to environmental conditions and their causes, such as reduced biodiversity and increased population and resource consumption. The first portion of the chapter concludes by suggesting actions such as removing financial incentives for over-consumption of limited economic resources, that could improve the current environmental trends.

Read on SSRN

Centre: CLAH

Research theme: Environmental Law, Human Rights Law and Policy

Climate Change and Indigenous Peoples

Book Review: Climate Change and Indigenous Peoples: The Search for Legal Remedies, Randall S. Abate & Elizabeth Ann Kronk, Editors (Edward Elgar: Cheltenham, UK & Northampton, MA, USA, 2013) pp. i-xxvii; 1-590

Author(s): Donald Anton

The excellent book that Professors Abate and Kronk have brought together as an edited collection is an important addition to an ongoing search for legal remedies for indigenous peoples facing existential threats on account of climate change harms. It picks up on a 2009 report by the Office of the UN High Commissioner for Human Rights that examined the linkages between climate change and indigenous peoples for the first time, at least by an international human rights body. Abate and Kronk write in the opening chapter, their book “recognizes that indigenous peoples are particularly vulnerable to climate change, both physically and legally” and the book specifically “addresses the challenges that these communities face in responding to climate change impacts.”

Read on SSRN

Centre: CLAH

Research theme: Environmental Law, Human Rights Law and Policy

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Betfair Pty Ltd v Western Australia and the New Jurisprudence of Section 92

Author(s):

Except for an immediate small flurry of cases, section 92 of the Australian Constitution went to sleep for 20 years after the High Court’s ground-breaking decision in Cole v Whitfield in 1988. Then in 2008, this pivotal guarantee of free trade among the states in our 19th century foundational document came into collision with new, 21st century, electronic ways of doing business, to which state geographical boundaries were largely irrelevant — except that it was the states that sought to regulate this business. In Betfair Pty Ltd v Western Australia, a 2008 case involving state regulation of internet gambling, the High Court reminded us of the gospel according to Cole v Whitfield: the states cannot regulate in a way that discriminates against interstate trade so as to confer protectionist benefits on their own intrastate trade. In the age, however, of the new economy, and of national competition law, some commentators have asked whether the national ‘common market’ is adequately fostered by confining section 92 to the prevention of state protectionism. Two further internet gambling cases in 2012 appear to squash any suggestion in the 2008 case that the High Court might stray from the true path of Cole v Whitfield and expand the ambit of section 92 beyond state protectionism — although a possible issue raised by laws that lessen competition without involving state protectionism was left to another day. In the author’s view, section 92 is appropriately confined to the prevention of state protectionism, with broader protection of the common market best left to other mechanisms.

Read on SSRN

Centre: CLAH

Research theme: Human Rights Law and Policy

Solving Problems

Solving Problems – A Strategic Approach: Examples, Processes & Strategies

Author(s): Elizabeth Curran

The report has been commissioned by Consumer Action Law Centre and the Footscray Community Legal Centre and launched at a National Conference and the Ruby Hutchison Lecture on Thursday 14 March 2013. The ACCC and CHOICE jointly host the Ruby Hutchison Memorial Lecture each year. Ruby Hutchison was the founder of the Australian Consumers' Association which is now known as CHOICE.

Dr Curran's report which was written with the assistance of the staff of Consumer Action Law Centre and the Footscray Community Legal Centre illustrates the importance of going beyond an individual approach to casework to benefit individuals, groups and the broader community. It argues that a strategic approach to problem solving can better ensure that a service is effective, efficient and targeted, with a broader and long lasting impact or as government says - a “successful outcome”. It also proposes that community legal centres should be given more support to encourage and foster an environment where strategic thought and planning about service mix approaches are used to make the service more outcome-focused. This would lead to service being more effective and mindful of what interventions are needed to achieve the best outcomes rather than merely providing case work, information and referral in isolation from a broader strategy that improves clients’ lives.

Read on SSRN

Centre:

Research theme: Human Rights Law and Policy, Indigenous Peoples and the Law, Law and Social Justice, Legal Education

The Law of Deliberative Democracy

The Law of Deliberative Democracy: Seeding the Field

Author(s): Ron Levy

Election law scholarship has been slow to take note of the deliberative turn in political theory. Aiming to remedy this omission, a special symposium issue (12:4, 2013) of the Election Law Journal recently featured eleven contributions toward an incipient “law of deliberative democracy” subfield of research in election law. The issue included works from scholars of politics (James Fishkin, Lisa Hill and Dennis Thompson) and law (Yasmin Dawood, James Gardner, Paul Kildea, Graeme Orr, Joo-Cheong Tham, Stephen Tierney and Jacob Rowbottom). Contributors initially aired and discussed ideas - including positions sceptical of deliberative democratic projects - in workshops at New York University and King’s College London in April 2013.

In this introduction to the symposium I provide theoretical context and map out where the various contributions fit among key emerging debates in the law of deliberative democracy. Throughout, I argue that we cannot understand the conditions for effective deliberative democracy without considering the roles of election law. Election law is a pervasive and distinctive element of deliberative democracy’s institutional backdrop. Yet deliberation still enjoys too little normative weight in studies of election law, in comparison with libertarian, egalitarian and other sources of legal reasoning.

Initially I identify three reasons why election law may be unable appreciably to set conditions for deliberative democracy: (1) the accommodation problem: that “accommodative” (win-win) reasoning in deliberative democracy may clash with law’s focus on balancing (zero-sum); (2) the elite problem: that legal elites may be unusually hostile to deliberative democratic projects; and (3) the performative problem: that election law’s underlying assumptions promote partisanship rather than deliberation. However, I conclude by identifying provisional solutions to each of these difficulties.

Read on SSRN

Centre: CIPL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

The Challenges of Measuring Outcomes – Examining Quality, Responsiveness and Legal Professionalism As a Way Forward (Presentation Slides)

Author(s): Elizabeth Curran

Dr. Curran discusses her research evaluation of Legal Aid ACT where she was asked to not only measure the quality of the legal services delivered but also to grapple with the vexed measurement of outcomes. In this paper Dr. Curran outlines briefly the approach to the evaluation, the lessons and some of the key findings around how to measure quality, outcomes and effectiveness of legal services delivery. 

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Centre:

Research theme: Human Rights Law and Policy, Indigenous Peoples and the Law, Law and Social Justice, Legal Education

Chisholm, Understanding Law

Understanding law: an introduction to Australia's legal system (8th ed)

Author(s): Richard Chisholm, Garth Nettheim

Written by highly qualified authors, the direct, clear and often humorous style of this book will help readers understand how the law relates to real issues and controversies. The institutions and sources of law in our legal system are clearly explained, including the roles of lawyers, the courts and the legislature. Illustrative examples and a discussion of actual cases enable students and other citizens to engage with topics such as historical basis of Australian law, Australian law and international law, human rights, procedural fairness and the notions of law and morality. New stimulus questions and activities included in this 8th edition invite the reader to consider the interrelationship of law, tradition and social values. Understanding Law is a perfect introduction to the law for students engaging with legal studies and for other academic disciplines at tertiary and senior secondary levels. It is an ideal starting point for any Australian interested in learning more about their legal system.

Order your copy online

Centre:

Research theme: Administrative Law, Constitutional Law and Theory, Criminal Law, Environmental Law, Human Rights Law and Policy, International Law, Law and Gender, Law and Social Justice

'A Literature Review: Examining the Literature on How to Measure the 'Successful Outcomes': Quality, Effectiveness and Efficiency of Legal Assistance Services'

Author(s): Elizabeth Curran

This is a literature review for the Attorney-General’s Department. The brief was as follows.

This literature review will examine research, studies, reports, reviews and evaluation and other material both nationally and internationally around legal assistance service evaluations on the following:

'Successful Outcome'

Quality

Efficiency

Effectiveness

This Literature Review has examined a significant number of research, reports, evaluations, reviews, academic writing, studies and submissions. Some of the key lessons that these documents reveal are detailed in this Executive Summary. Some conclusions and their basis are summarized in the section entitled, 'Conclusion – An Overview of the Findings of this Literature Review'.

Some documents were provided directly to the researcher and to the Attorney-General’s Department by the Legal Assistance Sector but have not been included in this Literature Review as they were outside its scope. However, many are useful and are discussed in this Literature Review.

This Literature Review highlights that legal assistance work is not only complex but that it is also complicated. Forty-seven international studies and ninety-one national studies were considered in the course of the conduct of this literature review.

The selection criteria for determining the 'usefulness' of the reports/reviews/evaluations/ studies was as follows:

•Written in the last decade.

•The Document/Study examines outcome, quality, effectiveness and efficiency or a combination of these considerations.

•The study sets out a clear question to be answered and the methodological approach was relevant to being able to answer the question asked.

•The method for extracting information or data was effective and relevant to the information sought.

•The questions asked of participants in the instruments used were relevant.

•The data collected was sufficiently clear in illiciting the information sought.

•Given the complicated and complex nature and diversity of the legal services and the clients served, the methodology was likely to reveal the reasons behind the responses or approach that the service adopted in terms of the considerations listed above.

•A number of approaches were taken to verify, complement and unpack the reasons for the answer and included a blend of quantitative and qualitative data rather than reliance on quantitative data or one method.

•The approach taken is relevant and of assistance in the context of the NPA and the Attorney-General’s ‘Strategic Framework on Access to Justice in the Federal Civil Justice System’ , the COAG Reform Agenda and to social inclusion and Indigenous disadvantage.

Significant difficulties are identified in much of the domestic and international literature in the measurement of outcome/results, quality, efficiency and effectiveness.

The literature domestically and internationally, identifies the lack of a common language with which to articulate results, the lack of a framework in which to capture them and the difficulties in being able to measure and prove success. Where such results based measurement exists it will often need to be descriptive, subjective and there is a risk that cannot be avoided, of its being anecdotal and vague.

Each program must be first understood to be able to inform how to identify and define outcomes and measure these and ensure adaptive learning and adaptive management processes rather than these being fixed and remote from the realities of practice.

Any approach must be able to adapt and incorporate changing realities and demands on the services that are being examined.

There is no one way which can make it easy to achieve a successful outcome. Good practice informed by good training, cultural awareness, sensitivity, adaptability and flexibility are key factors in effectively reaching and targeting vulnerable and disadvantaged groups. Legal assistance services operate at different levels. Within a legal assistance service different objectives and intentions can sit behind each program. Therefore, they cannot be measured as a 'lump' without first understanding the very nature, diverse ways of engaging that are required to target different client groups, complexity, layers and imperative and funding requirements that drive each of the many parts.

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Centre:

Research theme: Human Rights Law and Policy, Indigenous Peoples and the Law, Law and Social Justice, Legal Education

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